More for Our Colleagues Across the Pond

Continuing my discussion with “Interested Counsel” about the U.S. criminal justice system. He asks:

Another emotive issue over there appears to be disclosure. I had assumed this was similar to our own debate over when, in proceedings, full disclosure should take place. I infer from your (very good) podcast with the self-styled Charon QC that my assumption was wrong. That trials can take place without the Defendant knowing exactly what a state witness is being called to say shows the level of difference between our systems. Could we be moving in this direction? Hopefully my understanding is wrong.

Yes, trials can take place without the defendant knowing before trial exactly what the witnesses called by the State will say.

Suppose that you are defending a case in one of Texas’s hellish white-flight suburban backwaters — Williamson County, for example, or Collin County. The prosecutor has made the decision to prosecute your client based on police officers’ offense reports. You, however, have no right to read these reports and, in those counties, you will not read them before trial (they will be produced to you after the officers have testified). [Update: This may not be entirely accurate. Williamson County District Attorney John Bradley provides more information about his county’s discovery policy in criminal cases.]

The charging instrument, a public document, tells you who the complainant is, if there is a complainant, and you can try to talk to that person. The prosecutor may have filed a subpoena request naming at least some of the witnesses he plans to call at trial, but he has probably told “his” witnesses that they don’t have to talk to you, and told them so in terms that made it clear to them that he would prefer that they not do so.

Your client might remember who the police officers were, but the cops consider themselves part of the prosecution team, and they refuse to speak to you.

So you, trying to keep someone from going to prison, might go into the trial almost blind to the prosecutor’s case.

Fun, huh?

It’s not like this everywhere in the U.S. Even in Texas most chief prosecutors, unlike Williamson County’s John Bradley and Collin County’s John Roach, have staffs of prosecutors whom they can trust to do justice even when the playing field is a little more level. Even Harris County’s Pat Lykos (God’s gift to blawgers) has enough confidence in her assistant DAs that, starting Monday, defense lawyers will get copies of offense reports. In the mythic land known as Florida, I’ve heard, lawyers can even take depositions in criminal cases.

We — lawyers on both sides — have the right to try to talk to any witness. But we never know what a witness is going to say on the witness stand unless we have interviewed her ourselves before the trial. As long as witnesses in criminal cases have the right not to talk to us, there will be that element of surprise to make things exciting.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.

7 Responses to More for Our Colleagues Across the Pond

Holy stacked deck, Batman! You don’t get offense reports before you have to cross the cop who wrote them? And you don’t even know sometimes who the cop is going to be? How can that be!? How can you prepare cross-examination? How can you prepare for impeachment? How can this be consistent with due process and fair trial? Has the TX Supreme Court said that this is ok? And if so, has it been taken up to a higher authority? I just can’t believe that. How does anyone ever end up with a “not guilty” in such an environment?

Knowing the case against you is simply a fundamental principle of English/Welsh Criminal law…

I now have a far greater understanding of those ‘broken system’ comments relating to the Prosecutor/Defence debate and ‘doff my cap’ to Mr Bennett and his ilk who try and operate in such a system… It must be frustrating to say the least.

For our friends across the pond, how much access a defense counsel has varies state by state, and even county by county. Heck, sometimes there’s even a split in what the County Attorney and the District Attorney allow, in the same county.

I went to law school in Michigan (although I never practiced there) and if I remember correctly, there prosecutors are required to turn over police reports and other such material. When I came to Texas, I couldn’t believe that prosecutors were allowed to keep such information to themselves. It seemed like playing poker without knowing what your hand is.

Discovery in Florida state court is awesome. You get depositions in felony cases. You can even get them in misdemeanor cases with a court order. You just have to show some good cause, which usually means the prosecutor isn’t going to jump up and down and object. Sometimes you can get depos in Palm Beach county for a DUI or battery. However, in early 2008, the Florida legislature introduced HB 1327 (SB 2744 -identical) that would have effectively ended depositions in 3rd degree felony cases (max 5 years prison). It died in committee May 2008, but there will be more attempts to limit discovery in Florida. Just give ‘em time. It sounds like Texas state court is like federal court. Bend over, here it comes. No lube.

There’s a simple, elegant solution: open files. Don’t worry about what’s essential, or important, or Brady material, but just open the files, and require it by law. That’s something that even an amateur like me should be able to spot, although I can’t take credit for it myself; the guy at the bus stop pointed it out to me, in between sips from whatever he had in that paper bag.

But he’s not a lawyer, either; said that they had that in Georgia, where he came from. (Nice guy, name of Nifong, I think.)